[A] panel of lawmakers voted in favor of a bill that would allow law enforcement officers to use saliva testing to detect the presence of drugs in motorists.
The House Transportation Committee approved the bill, H.237, on Friday, by a vote of 10-0-1. Before it is taken up by the full House, the measure may first be sent to the House Judiciary Committee for further review.
The bill was introduced following the passage last month of H.511, legalizing the possession of up to one ounce of pot and the cultivation of two mature and four immature marijuana plants. That bill becomes effective July 1.
Prior to voting whether to approve saliva testing Friday, the panel received one last overview of the measure.
“We’ve been through it multiple times, taking a great deal of testimony,” Rep. Pat Brennan, R-Colchester, chair of the House Transportation Committee, said Friday after the vote. “I think the key obstacles that anybody would object to are gone.”
Supporters of the legislation said the tests are necessary to keep drug-impaired drivers off the road. Opponents of saliva testing say it is overly invasive as well as inaccurate — the testing would indicate the presence of drugs, but not impairment.
The American Civil Liberties Union of Vermont and the state Office of the Defender General have said they plan to challenge the legislation, should it ultimately become law.
“They ignored the science and did what they wanted to do,” Defender General Matthew Valerio said Friday of the committee’s action. “The compelling evidence is that saliva testing doesn’t tell you anything about impairment.”
Asked how a legal challenge would be made, should the legislation get enacted, Valerio said, “We probably could sue to enjoin application of the statute before it ever was applied to anyone. But typically we get it arising out of a case.”
Brennan said based on testimony on the bill, he also fully expects the legislation to end up before a judge.
“We’ve been promised a court challenge,” he said. “That doesn’t stop us from passing commonsense legislation.”
Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee, said Friday that should the legislation pass the House he would expect it would either be sent to the committee he heads or to the Senate Transportation Committee for review.
He added that while he’s open to taking a “good hard look” at the proposed bill, he’s not inclined to support it.
“Someday I’m sure that there will be a test that determines a level of impairment due to the use of marijuana,” Sears said. “We’re not at that time.”
A saliva test, he added, would only show that marijuana or another drug might be in a person’s system. “My understanding is a test doesn’t give us a level of impairment,” Sears said.
Asked if he thought the legislation could get through the Senate, Sears replied, “I don’t even know if it will get through the House. Enough concern has been expressed by various organizations and people who work in the field … I guess I’ll cross that bridge when I get to it.”
Vermont Public Safety Commissioner Thomas Anderson testified last month before the House Transportation Committee. He urged the panel to approve the legislation providing law enforcement officers the means to use saliva testing on drivers who are “reasonably suspected” to be drug-impaired.
The only way to test now for the presence of drugs in a impaired driver believed to be impaired is a blood test, the public safety commissioner said. The process of obtaining a blood test is time-consuming, often leading to it being administered well after a traffic stop. A saliva test, he told the panel, could be administered immediately.
Anderson said non-evidentiary roadside saliva tests would be an added tool for officers to use in trying to determine if a motorist is impaired.
If the results of a roadside saliva test is positive for drugs, an evidentiary saliva test would follow. That “confirming” test would be sent to the state laboratory for results.
Anderson cautioned that even if enacted immediately, it would still take time to establish the needed rules and procedures for saliva testing. And, he said, with an expected court challenge, it could be more than a year before the Vermont Supreme Court would rule on whether results from an evidentiary saliva test would be admissible into evidence.
The committee heard testimony that there is no scientific standard for determining impairment based on detectable levels of THC, the active ingredient in marijuana. Anderson had told the panel he was not recommending establishing a “per se” limit in a person’s system of THC, the active ingredient in marijuana.
For comparison, the legal limit for blood-alcohol content is 0.08 percent for driving in Vermont.
The committee agreed Friday to not include any “per se” limits for THC in the legislation.
“It muddies the water,” Rep. David Potter, D-Clarendon, a committee member, said.
Vermont State Police Lt. John Flannigan, commander of the Vermont State Police’s safety programs, told the committee in his testimony last month that before performing a saliva test, other indicators of impairment will be taken into account.
Those indicators, he said, include an officer’s observation of a motorist’s driving to that person’s performance on a field sobriety test. The results of the saliva test would not be the only indicator of impairment, but rather a “confirming” indicator, he told the committee.
A saliva test would also detect substances other than cannabis, like opiates, Flannigan said.
The ACLU of Vermont and the Defender General’s Office both testified before the committee that police already have effective tools to determine a motorist’s impairment. Those tools, they testified, included field sobriety tests and “Drug Recognition Experts,” or DRE, specially trained officers in detecting drivers impaired by drugs.
Rep. Mollie Burke, P/D-Brattleboro and a member of the House Transportation Committee, said after the vote Friday that she was initially sure that she would be opposing the saliva testing legislation. However, after listening to the testimony and realizing that it would likely be reviewed through the courts she said she decided to support it.
“One of the other reasons why I voted for it is that I hope it will make it easier to get to tax and regulated marijuana,” she said. “We need the money for education.”
